Land and Environment Court New South Wales Medium Neutral Citation: Vigor Master Pty Ltd v Northern Beaches Council [2017] NSWLEC 1729 Hearing dates: Conciliation conference on 3, 9, 10, 23 November & 4, 7, 12 December 2017 Date of orders: 18 December 2017 Decision date: 18 December 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Vigor Master Pty Ltd (Applicant) Northern Beaches Council(Respondent) Representation: Solicitors: Ms I Wang, Litigant in Person (Applicant) Mr S Patterson, Wilshere Webb Staunton Beattie (Respondent) File Number(s): 2017/194315 Publication restriction: No Judgment 1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to amend the modification application, the subject of these proceedings, by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the modification application: Drawing No. Dated Prepared By S001 Site Plan Revision 2 6.11.2017 Vigor Master Pty Ltd S101 Building B1 Floor Plans 16.10.2017 Vigor Master Pty Ltd S102 Building A2 Floor Plans 16.10.2017 Vigor Master Pty Ltd S103 Building C1 Floor Plans 16.10.2017 Vigor Master Pty Ltd S104 Building C2 Floor Plans 16.10.2017 Vigor Master Pty Ltd S105 Floor Plans Reception & Community Centre Revision 2 17.11.2017 Vigor Master Pty Ltd S204 Reception Elevations 17.11.2017 Vigor Master Pty Ltd S205 Community Centre Elevations (North - South) 17.11.2017 Vigor Master Pty Ltd S205 Community Centre Elevations (East – West) 17.11.0217 Vigor Master Pty Ltd S401 External Finishes and Colours Schedule 17.11.2017 Vigor Master Pty Ltd Engineering / Erosion Control Plans Drawing No. Dated Prepared By C001 Drawing Register and Construction Notes 28.11.2017 Bonacci Group C002 T2 Soil and Water Management Plan Stage 1 14.11.2017 Bonacci Group C003 T2 Soil and Water Management Plan Stage 2 14.11.2017 Bonacci Group C004 T2 Soil and Water Management Plan Stage 3 14.11.2017 Bonacci Group C005 T2 Soil and Water Management Plan Stage 4 14.11.2017 Bonacci Group C010 T4 Site Stormwater Drainage Plan 28.11.2017 Bonacci Group C011 T5 Site Works and Stormwater Drainage Plan Sheet 1 28.11.2017 Bonacci Group C012 T6 Site Works and Stormwater Drainage Plan Sheet 2 28.11.2017 Bonacci Group C013 T6 Site Works and Stormwater Drainage Plan Sheet 3 28.11.2017 Bonacci Group C033 T3 Site Works and Stormwater Drainage Details 6.12.2017 Bonacci Group C050 T3 Road Conrol Line Setout Plan 28.11.2017 Bonacci Group C051 T4 Road Longitudinal Section Sheet 1 28.11.2017 Bonacci Group C052 T3 Road Longitudinal Section Sheet 2 28.11.2017 Bonacci Group C053 T4 Road Longitudinal Section Sheet 3 28.11.2017 Bonacci Group C060 T5 Road Cross Sections Sheet 1 6.12.2017 Bonacci Group C061 T5 Road Cross Sections Sheet 2 6.12.2017 Bonacci Group C062 T4 Road Cross Sections Sheet 3 28.11.2017 Bonacci Group C063 T4 Road Cross Sections Sheet 4 28.11.2017 Bonacci Group C064 T4 Road Cross Sections Sheet 5 28.11.2017 Bonacci Group C065 T4 Road Cross Sections Sheet 6 28.11.2017 Bonacci Group C066 T4 Road Cross Sections Sheet 7 28.11.2017 Bonacci Group C067 T4 Road Cross Sections Sheet 8 28.11.2017 Bonacci Group C068 T3 Road Cross Sections Sheet 9 6.12.2017 Bonacci Group C080 P5 Cut and Fill Layout 27.11.2017 Bonacci Group Reports / Documentation – All recommendations and requirements contained within: Report No. / Page No. / Section No. Dated Prepared By Access / SEPP Compliance Report 28.3.2017 PSE Access Consulting Basix 799856M 26.2.2017 Thermal Performance BCA Compatibility Report March 2017 Sydneywide Engineering Waste Management Plan 29.3.2017 Vigor Master Pty Ltd 1. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs thrown away as a result of amending the modification application, the subject of these proceedings as agreed or assessed. 2. The appeal is upheld. 3. Modification Application No. MOD2017/0080 to modify Development Consent No. DA 2009/0800 for the construction of a retirement village comprising 32 units and subdivision on the land at 8 Lady Penrhyn Drive, Beacon Hills NSW, legally identified as Lot 806, DP 752038 is approved subject to the conditions in Annexure "A". ………………………. Commissioner Chilcott Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2017